Office of the General Counsel

S96011742

Dear Mr. [xxx]:

We have reviewed the claim that you filed with the [agency] on August 16, 1996, for the restoration of eight hours of annual leave. For the reasons expressed herein, the Office of Personnel Management (OPM) denies your claim.

On Sunday, January 7, 1996, the Governor of [state] declared a disaster emergency in 47 of [state's] 67 counties, including the county in which you reside. At approximately the same time, the Governor issued a press release in which he declared that all roads in the affected counties would be closed from 10:00 pm on Sunday, January 7, 1996, to 12:00 pm on Monday, January 8, 1996.

However, the emergency did not include [name] County which includes the city of [name]. On Sunday, January 7, 1996, the head of the [name] District Corps of Engineers, the District Engineer, determined that the District Office in [city, state], would be open for business at 9:00 am on Monday, January 8, 1996. The District Engineer further determined that while employees who did not report for duty at the District Office in the [name] Federal Building would be granted annual leave, they would not be granted excused or administrative leave.

The determination to excuse federal employees from duty without charge to leave during snow emergencies is within the discretion of the employing agency. OPM will not overturn an agency action committed to agency discretion unless it finds that the agency action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. See Fort Monroe, B-219232, September 26, 1986; Keenan and Goodman, B-209285, March 2, 1983; and 54 Comp. Gen. 310 (1974). See also 46 Comp. Gen. 730, 735 (1967), as cited in Robert Baldwin, B-192372, January 2, 1979.

Not all of a federal employee's annual leave is "available for vacation purposes ... for the reason that every absence from duty for any reason is charged to the employee's leave account." Senate Report No. 83-294, page 2 (May 19, 1953) (Annual and Sick Leave Act of 1951, Public Law 83-102). Thus, a federal agency may require employees to take annual leave in accordance with the needs of the service. 19 Comp. Gen. 955 (1940) and Lillian M. Wheeler, B-171947.69, May 30, 1975. Where there is no law, regulation or policy that mandates a particular agency policy, agency action will not be deemed an abuse of discretion. James L. Davis, B-212581, May 16, 1984; Forrest C. Harris, B-193131, June 5, 1980; and Arnold J. Glaz, B-165042, December 21, 1978.

Sincerely yours,

Murray M. Meeker
Senior Attorney

Cc: [agency's name and address]